Sex Discrimination (Election Candidates) Bill

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Joan Ruddock: Why would the amendment change the provision to include the phrase ``selected or elected''? The logic of the hon. Lady's argument seems to be that the word ``selected'' should replace the word ``elected''.

Mrs. May: The amendment states ``selected or'' because it is a probing amendment; we are trying to tease from the Minister a precise legal definition.

Joan Ruddock: The amendment does not seem to meet the hon. Lady's argument, because the word ``elected'' remains in the Bill.

Mrs. May: The intention is to ensure that all aspects of the process are covered. The clause applies to arrangements adopted to reduce inequality in the number of women elected. However, to be elected one has to be selected. I therefore suggest that the clause should include the prior process of selection, so that anything that a party might wish to do to reduce inequality in the number of women selected to stand for election would be permitted. I understand the hon. Lady's point—that the ultimate aim of the legislation is to increase the number of women elected to the House—but to be elected they must first be selected.

The other purpose of the amendment is to explore the impact of European Union legislation. As the hon. Member for North Cornwall pointed out, Lord Lester will wish to explore those legal aspects; indeed, many well-qualified and experienced Members of the other place will wish to explore the issue in detail. It is important that the Government are absolutely firm on the matter. It is in that context that I tabled the amendment.

The Abrahamsson and Anderson v. Fogelquist case calls into question exactly what action can be taken. Article 2(1) and (4) of directive 76/207 and article 141 of the Rome treaty as amended by the Amsterdam treaty preclude national legislation that permits positive action if it applies only to procedures fulfilling a predetermined number of posts. The problem is that, by definition, an elected body has a predetermined number of posts. Will the Minister say whether I am right to be concerned about that provision?

In its ruling on the Abrahamsson case, the European Court of Justice showed that provisions that dictate an automatic preference for an inferior candidate solely because of gender are precluded by the directive even if that candidate meets the basic qualifying standards and are not rescued by application of article 141(4) of the treaty of Rome. I hope that the Minister will take it in the right way when I say that I suspect that his party has the greater need to be absolutely clear on the application of European Union legislation. All-women shortlists seem most likely to be challenged because of the Abrahamsson ruling, particularly those that include people less well qualified than men who might otherwise wish to apply. The ruling suggests that such a process would at least be open to legal challenge, and that it could be found to be illegal notwithstanding the Bill's provisions.

As I said when speaking on the programme motion, we want to ensure that the Bill is effective and that we can have confidence in it and rely on it to allow the action that political parties wish to take. If a question remains under European Union legislation, all parties would have to consider that carefully when examining their proposals for positive action. It is a difficult area. As I have said before, I am not a lawyer, so I am not well versed in reading the intricacies of court judgments, especially those of the European Court of Justice.

11.45 am

Joan Ruddock: I would like to turn the hon. Lady away from those esoteric considerations of law to examine the wording of the clause as she proposes to amend it. If the amendment is designed to reduce inequality in the numbers of men and women selected or elected, as opposed to selected and elected, that suggests to me that a party could have as its target an increase in the number of women selected while ignoring whether or not they were elected. I take the hon. Lady back to the point made by the hon. Member for South Cambridgeshire about how the mechanisms might be put in place using a limited list. Let us say that each party fields candidates in 100 seats which it expects not to change hands—which it considers unwinnable. If the amendment were accepted, might it mean that it is those seats for which women are selected?

Mrs. May: I shall deal with the second point first, because the hon. Lady seemed to be suggesting that the proposal for limited seats, which both I and my hon. Friend the Member for South Cambridgeshire made during the recess, could be applied to the less winnable seats rather than the winnable seats. In fact, the proposal is that the limited and balanced list should be put forward specifically for winnable seats that the party holds or expects to win at the next election. The proposal was made in that context and was concerned with balancing the number of men and women selected for seats where a Conservative Member is expected to be elected at the next election, not the no-hoper seats that many of us fight our first time round in trying to get into the House.

The hon. Lady's more substantial point about the wording of the amendment was entirely valid and in the spirit of consensus. I fully accept the point and, if the Government wish to propose alternative wording, I would be happy to consider that later in the proceedings. The wording may not be felicitous but, as my hon. Friends the Members for Chesham and Amersham and for South Cambridgeshire remarked when commenting on the programming motion, if the time in which amendments can be tabled is limited, they tend to be done quickly and that leads to the wording not being as felicitous as it should be.

I have told the Minister that we want to ensure that the Bill can be substantiated and will stand up without legal challenge under European Union legislation. I refer to the Minister's winding-up comments on Second Reading. One crucial aspect is the nature of the selection process for candidates. The Government appear to be relying on the fact that there is a difference between being appointed to a job and being selected to put oneself forward for election to that job. However, I put it to the Minister that being selected to fight a certain parliamentary constituency or local council ward for a particular party is effectively to be appointed the elected representative for that party. Some seats do not change hands. The number of those for each party has varied over the years and I hope that there will be significantly more of them for the Conservative party in future.

The Minister has made a distinction between telling somebody that they have been appointed to a job and telling them that they have been selected for election to that job. We all know the saying that one could put up a donkey for the majority party in a seat that does not change hands, and it would be elected. In such seats, the process of selection is effectively the same as appointing the selected person to the job; the selectors have absolute confidence that that person will become the MP.

Joan Ruddock: My party has sister parties in other European states that use positive mechanisms, of which there are many. Even the hon. Lady's party has sister parties on the continent that have done likewise. Can she give an example of a successful challenge to those mechanisms?

Mrs. May: No, I cannot. The background information makes it clear, as the hon. Lady says, that parties in other EU states use positive action and positive discrimination to achieve the balance that we are referring to. The fact that that action has not been challenged elsewhere does not mean that it could not be challenged in the United Kingdom. In the spirit of constructiveness, I say to the hon. Lady that it was her party that was taken to court, albeit under UK legislation on industrial tribunals. It is therefore important for the Government to be absolutely clear that no loophole could give rise to a legal challenge, as lawyers differ in their interpretation of the issue, and particularly of the Abrahamsson case.

The Minister made it clear on Second Reading that he did not think that the Abrahamsson case applied because it was about appointment to a job, not about selection for election. That is why I am exploring with the Minister the nature of the selection process and the extent to which, in certain circumstances, it differs from that of appointment to a job.

I hope that the Minister will accept this probing amendment in the spirit in which it is put forward. As the hon. Member for North Cornwall said, this is precisely the sort of issue that the Government might find their Lordships exploring in detail when the Bill goes to another place.

Mrs. Calton: I have listened with interest to the hon. Member for Maidenhead and I am pleased that there is recognition that the wording might not be exactly as it should be. We Liberal Democrats feel that inserting in the clause the words, ``selected or'' fails to recognise the main point of the Bill. That phrase muddies the waters and allows a greater risk of challenge. It might reduce political parties' ability to produce greater equality in the election process. As the hon. Member for Lewisham, Deptford (Joan Ruddock) said, equality of selection does not necessarily lead to equality of election.

Mrs. May: Could I explore the hon. Lady's comment that the insertion of the words ``selected or'' could give rise to greater challenge of the Bill? Has she thought that through in relation to the Abrahamsson case? It could be argued that it is the ``election'' part of that clause that is closer to the appointment to a job, so the ``selection'' part would attract less challenge.

Mrs. Calton: I thank the hon. Lady for that point. However, we need an assurance from the Minister that that case is relevant here; that is not clear. The addition of ``selected or'' could limit the range of actions that political parties could take and we have grave misgivings about that phrase being part of the Bill.

 
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